APPEAL from the Circuit Court of Whiteside County; the Hon.
A.J. SCHEINEMAN, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
This is an appeal to this court from an order of the circuit court of Whiteside County admitting to probate the last will and testament and codicil of Frank A. Trager. The petition for the probate of the will and codicil discloses that both personal and real property is devised, and that, therefore, a freehold being involved, an appeal lies to this court.
Frank Trager, the testator, and his wife, Lura B. Trager, lived at Sterling, Illinois. While living they were engaged in the plumbing business, he being the master plumber therein, and she the general manager thereof. Each possessed separate properties of a somewhat extensive nature, both personal and real. They had no children, but a large number of collateral relatives.
Frank Trager, on July 23, 1923, executed his will by the terms of which he devised all of his property, both real and personal, to his wife, Lura B. Trager. Frank Trager also on some unspecified date executed a codicil wherein he bequeathed and devised to the collateral relatives of his wife and of himself all his property and that of his wife, both real and personal, specifying that his property should go to his collateral relatives and that of his wife to her collateral relatives, the only exception being that the employees of the business were to receive the business, and the church a bequest of one thousand dollars. No bequest or devise of any property is made to his wife, nor is her name mentioned therein.
The extrinsic evidence which the court permitted to be introduced at the probate proceedings shows that Lura B. Trager also on July 23, 1923, executed her will wherein she bequeathed and devised to Frank Trager, her husband, all of her property to be his absolute property forever. She also, like her husband, on an unspecified date, executed in exactly the same language a codicil, wherein she bequeathed and devised all of her property and also that of her husband to his and her collateral kindred, and, like the husband, specified that her husband's property was to go to his collateral kindred, and her property to her collateral kindred, with the exception that certain employees were to receive the business and the church a bequest of one thousand dollars. This codicil made no bequest or devise to Frank Trager, nor was his name mentioned therein.
The extrinsic evidence introduced also shows that Lura B. Trager died on December 12, 1947. Her will was admitted to probate on February 9, 1948, and Frank A. Trager was appointed executor under the terms thereof. The aforementioned codicil executed by her was not offered for probate. Frank Trager, her surviving husband, was bequeathed and devised all of the property of Lura B. Trager.
Frank Trager, the testator here, died on September 2, 1951, nearly four years after the death of his wife, Lura B. Trager. His will and the codicil here in question were found at his death in a semifireproof filing cabinet in a little room that Frank Trager used as an office, located off the dining room. The will and codicil were in a manila envelope, including the instruments purporting to be a similar codicil signed by his wife. Also therein was a notice of probate of the Lura B. Trager will in the clerk's envelope addressed to Frank Trager.
The appellants in this case contend that the codicil in question is conditional and contingent, first, because the language used in the codicil, bequeathing and devising the property, when given its ordinary plain meaning, shows the intention to make it so; second, because the paragraph designated as "First" contains these words, "Buy 2 of the best Crypts in the Sterling Valley Mausoleum in which to place our remains," which, properly construed, means that the intention of the testator was that said codicil was to become operative only when both the husband and wife had died in accordance with the manner set forth in the codicil; third, because the codicil provided that one L.P. McMillan was to be the executor thereof and he had died in the year 1931, almost twenty years before the death of Frank Trager, and the failure of Frank Trager during his lifetime to name a successor indicates that Frank Trager regarded the codicil of no force and effect at the time of his death; fourth, because a number of legatees and devisees apparently had died before Frank Trager and he had made no attempt to correct the codicil, thus permitting some of said bequests and devises to lapse; and finally, fifth, because the codicil bears no date, and it is impossible to determine whether the same was executed before or after the execution of the Frank Trager will, and it is inconsistent with the provisions of said will and therefore void.
There is little or no disagreement of counsel as to the rules applicable to cases involving the construction of wills. They disagree only as to application of the same as to the codicil here in question.
The underlying and cardinal principle in the construction of the codicil is, of course, to ascertain the intention of the testator as expressed in the codicil. (Glaser v. Chicago Title and Trust Co. 393 Ill. 447; Peck v. Drennan, 411 Ill. 31.) The intention of the testator should be gathered from the four corners of the will. (Dalton v. Eash, 411 Ill. 296; Halderman v. Halderman, 342 Ill. 550.) The law also is well settled that the intention of the testator must be ascertained from a consideration of the entire codicil and such construction adopted, if possible, as will uphold and give effect to all the language used by the testator. (Glaser v. Chicago Title and Trust Co. 393 Ill. 447.) There is a presumption against intestacy, and the court will adopt any reasonable construction to avoid a conclusion of intestacy. Suiter v. Suiter, 323 Ill. 519.
The leading case in Illinois on conditional and contingent wills is Barber v. Barber, 368 Ill. 215. Therein we find the following language, "To render a will conditional or contingent its language must clearly show that it was the intention of the testator to make a will which would operate only during a certain period or until an emergency has passed." (Likefield v. Likefield, 82 Ky. 589; Forquer's Estate, 216 Pa. St. 331, 66 A. 92.) This court in said case also declared, "A will is not conditional, however, if the contingency expressed in the instrument is referred to merely as the inducement, by way of narrative, for making the will, at the time it is made." 68 Corpus Juris, Wills, sec. 256; 1 Schouler on Wills, Executors and Administrators, (5th ed.) sec. 285; Forquer's Estate, 216 Pa. St. 331, 66 A. 92; Walker v. Hibbard, 185 Ky. 795, 215 S.W. 800, 11 A.L.R. 832.
The court below, in construing the codicil in question, over the objection of the appellants admitted certain extrinsic evidence. The rule concerning the admission of such testimony is set forth in the Barber case and is that parol evidence is inadmissible to show that an instrument, which in form is a general or absolute will, was intended to take effect only upon a contingency, citing In re Will of Tinsley, 187 Iowa, 23, 174 N.W. 4, 11 A.L.R. 826. Conversely, parol evidence is admissible to show that the testator's intention was to make an absolute and not a contingent will. (68 Corpus Juris, Wills, sec. 256.) With these rules in mind let us now consider the codicil in question.
The first contention of the appellants is that the codicil is conditional and contingent because the language used therein makes it so. In the husband's codicil we find this language, "In case my wife, Lura B. Trager, and myself should both be killed or die within a short time of each other, I wish the following disposition made of my real estate, stocks, bonds, etc."
The appellants contend that this clause is a condition limiting the effect of the instrument to the occasion of accidental death or a short time of survivorship. It is then argued that inasmuch as neither Frank Trager nor Lura Trager was killed and Frank Trager survived his wife by more than three years and eight months, they ...